Sunday, August 3, 2014

CWA settlement obligates East Bay communities to spend $1.5 billion to eliminate sewage discharges

Last week, several San Francisco area East Bay communities, which collectively represent 650,000 people, entered into a consent decree with the Justice Department and EPA with regard to ongoing Clean Water Act waste water violations.  In addition to $1.5 million in fines, the consent decree also obligates the communities to spend a collective $1.5 billion over the next 21 years to ensure Clean Water Act compliance.  View the consent decree here.  

Here is the EPA press release:

Seven East Bay communities and municipal utility district to repair systems and pay civil penalties

SAN FRANCISCO – The U.S. Environmental Protection Agency today announced a Clean Water Act settlement requiring the East Bay Municipal Utility District (EBMUD) and seven East Bay communities to conduct extensive system repairs aimed at eliminating millions of gallons of sewage discharges into San Francisco Bay. Under today’s agreement, EBMUD and the communities will assess and upgrade their 1,500 mile-long sewer system infrastructure over a 21-year period. 

The work is expected to cost approximately $1.5 billion. The entities will pay civil penalties of $1.5 million for past sewage discharges that violated federal environmental law.

Since 2009, EPA, state and local regulators and environmental groups have worked to reduce sewage discharges from East Bay communities. During that period, interim actions required EBMUD and the East Bay communities to improve their sewer maintenance practices and gather information to identify priorities for investment. 

The San Francisco Bay covers 1,600 square miles and is the largest Pacific estuary in the Americas, a host for millions of migratory birds and a hub of commerce and recreation for more than 7 million Bay Area residents. 

Unfortunately, the Bay is under threat from many sources of pollution, including crumbling wastewater infrastructure that allows sewage to escape from the system. During rainstorms, in particular, older sewer systems can be overwhelmed, releasing rivers of sewage before being fully treated.

In addition to polluting waterways, raw and partially treated sewage can spread disease-causing organisms, metals, and nutrients that threaten public health. Sewage can also deplete oxygen in the bay, threatening fish, seals and other wildlife.

“For many years, the health of San Francisco Bay has been imperiled by ongoing pollution, including enormous discharges of raw and partially treated sewage from communities in the East Bay,” said Jared Blumenfeld, EPA’s Regional Administrator for the Pacific Southwest. “Many of these discharges are the result of aging, deteriorated sewer infrastructure that will be fixed under the EPA order.”

Today’s settlement is the result of a Clean Water Act enforcement action brought by the EPA, U.S. Department of Justice, State Water Resources Control Board, San Francisco Bay Regional Water Board, San Francisco Baykeeper and Our Children’s Earth Foundation.

“This settlement will result in major reductions of sewage discharges into the San Francisco Bay,” said W. Benjamin Fisherow, Chief of Environmental Enforcement in the Justice Department’s Environment and Natural Resources Division. “These improvements will help reach our goal of eliminating pollution in the neighborhoods in these cities and in the Bay so that citizens may rest assured that they reside in a safe, clean environment.” 

The seven East Bay communities in the EBMUD settlement are:

City of Alameda
City of Albany
City of Berkeley
City of Emeryville
City of Oakland
City of Piedmont
Stege Sanitary District (serving El Cerrito, Kensington, and a portion of Richmond) 

“The public has been required to repair their own sewer laterals for over two years now, so it is past time that the local agencies aggressively repair their sewer systems,” said Bruce Wolfe, Executive Officer of the San Francisco Bay Regional Water Board. “This settlement spells out how the agencies will work with the public over the next 21 years to do just that and protect the Bay.”

“Baykeeper will be watching the progress of these repairs closely to ensure that pollution of San Francisco Bay is reduced and eventually eliminated, and we will take action if the repairs fall short,” said Baykeeper Executive Director Deb Self. 

On an annual basis, hundreds of millions of gallons of raw and partially treated sewage are discharged directly to San Francisco Bay. Also, as much as 600,000 gallons of raw sewage from community sewer systems is first discharged onto streets and other public areas—through outlets such as manhole covers—before it drains to the Bay.

As part of the agreement, EBMUD and the seven communities will:

repair and rehabilitate old and cracked sewer pipes;
regularly clean and inspect sewer pipes to prevent overflows of raw sewage; 
identify and eliminate illegal sewer connections;
continue to enforce private sewer lateral ordinances; and
ensure proactive renewal of existing sanitary sewer infrastructure.

EBMUD will also immediately begin work to offset the environmental harm caused by the sewage discharges, which are expected to continue until these sewer upgrades are completed, by capturing and treating urban runoff and contaminated water that currently flows to the Bay untreated during dry weather.

Keeping raw sewage and contaminated storm water out of the waters of the United States is one of EPA’s National Enforcement Initiatives.

The proposed settlement is subject to a 30-day public comment period and final court approval. 

Read the settlement at:

Learn more about the settlement and earlier EPA wastewater enforcement in the East Bay at: 

EPA is working to restore San Francisco Bay, learn more at: 

Learn more about EPA’s national wastewater enforcement initiative at: 

Interestingly, I did not see anything in the consent decree that explicitly requires these new facilities to account for, or otherwise plan for, climate change adaptation.  Let's hope the implementation takes that into account.

Stephen R. Miller

August 3, 2014 | Permalink | Comments (0)

Saturday, August 2, 2014

Life after LOS: California nears a new era of transportation planning

Level of Service (LOS) determinations are a hallmark of transportation planning nationwide and, moreover, often a key reference point for discussion in highly-contested land use projects.  Now, California is contemplating giving up the LOS system, which grades roadway traffic before and after a project on a scale similar to school grades, in favor of something else.  

Rumor has it that new measure will be "vehicle miles traveled," or VMT, which will more directly align with the state's GHG-emissions reduction plans.  But the transition could be messy.  Bill Fulton, the don of California land use, has a nice blog post that explains some of the kinks that need to be worked out.

Stephen R. Miller

August 2, 2014 | Permalink | Comments (0)

Friday, August 1, 2014

Land use articles posted on SSRN in July

It is the first of the month, and that means it is time to check in on new articles posted to SSRN in July.  Because land use does not have its own specific eJournal, I continue to try to find the best way to capture all of the land use-related articles.  This month, I am posting three lists.  The first is the list I have published since the beginning of the year:  all articles that are retrieved with a search of the SSRN site with the search term "land use" and "last month" as the time frame.  I am also posting the "top 10" article lists from two related eJournals:  the Property, Land Use & Real Estate Law eJournal and the State & Local Government Law eJournal, which provide the top 10 articles by downloads in the last sixty days in each respective eJournal.  This makes for a slightly longer list of articles and some duplication, but it also gives us all a better sense of what's doing with regard to land use scholarship, and I think that is a good thing.  As always, I welcome comments. 

1 Incl. Electronic Paper Using Non-Environmental Law to Accomplish Environmental Objectives 
Journal of Land Use & Environmental Law, Vol. 30, 2015 Forthcoming
Todd S. Aagaard 
Villanova University School of Law 
Date posted: 
01 Jul 2014

Last revised: 
26 Jul 2014

Accepted Paper Series

2 Incl. Electronic Paper Environmental Interventions and Air Pollution (Re)distribution in Delhi, India 
Naresh Kumar Marc Linderman Allen Chu Sachidnand Tripathi Andrew D. Foster and Dong Liang 
University of Iowa , Government of the United States of America - National Aeronautics and Space Administration (NASA) , Indian Institute of Technology (IIT), Kanpur , Brown University - Department of Economics and University of Iowa 
Date posted: 
04 Jul 2014

working papers series

3 Incl. Electronic Paper From Nectow to Koontz: The Supreme Court's Supervision of Land-Use Regulation 
William A. Fischel 
Dartmouth College - Department of Economics 
Date posted: 
27 Jul 2014

working papers series

4 Incl. Electronic Paper China's Stealth Urban Land Revolution 
American Journal of Comparative Law, Vol. 62, No. 2, Spring 2014
Donald C. Clarke 
George Washington University Law School 
Date posted: 
26 Jul 2014

Accepted Paper Series

5 Incl. Electronic Paper The Community Infrastructure Levy: Confining Discretionary Activity at Local Level? 
LSE Legal Studies Working Paper No. 19/2014
Tola Amodu 
Date posted: 
16 Jul 2014

working papers series

6 Incl. Electronic Paper Farming the City: Urban Agriculture, Planning Law and Food Consumption Choices 
Liesel Spencer, 'Farming the City: Urban Agriculture, Planning Law and Food Consumption Choices' 39(2) Alternative Law Journal 120-124.
Liesel Spencer 
School of Law, University of Western Sydney 
Date posted: 
25 Jul 2014

Accepted Paper Series

7 Incl. Electronic Paper Note, A Spoonful of Sugarcane Ethanol: A Green Tax Medicine for the Cellulosic Ethanol Industry 
15 Minn. J. L. Sci. & Tech. 1117 (2014)
Ke M. Huang 
University of Minnesota - Twin Cities - School of Law 
Date posted: 
17 Jul 2014

Accepted Paper Series

8 Incl. Electronic Paper Does the Nomination Scheme of the City Manager Matter for Urban Development Policies? 
Ruhr Economic Paper No. 476
Sebastian Garmann 
University of Dortmund - Ruhr Graduate School in Economics 
Date posted: 
24 Jul 2014

working papers series

9 Incl. Electronic Paper Land Use Impact Fees: Does Koontz v. St. Johns River Water Management District Echo an Arkansas Philosophy of Property Rights? 
Carl J. Circo 

Date posted: 
11 Jul 2014

working papers series

10 Incl. Electronic Paper Some Australian Examples of the Integration of, Environmental, Economic and Social Considerations into Decision Making - The Jurisprudence of Facts and Context 
McKay, Jennifer (2010) 'Some Australian examples of the integration of, environmental, economic and social considerations into decision making - the jurisprudence of facts and context', Global Justice and Sustainable Development, pp.327-340
Jennifer McKay 
University of South Australia - School of Law 
Date posted: 
31 Jul 2014

Accepted Paper Series

11 Incl. Electronic Paper Storm Surges, Disaster Planning, and Vulnerable Populations at the Urban Periphery: Imagining a Resilient New York after Superstorm Sandy 
Idaho Law Review, Vol. 50, pp. 19-47, 2014
Andrea L. McArdle 
CUNY School of Law 
Date posted: 
22 Jul 2014

Accepted Paper Series

12 Incl. Electronic Paper Framing Inclusionary Zoning: Exploring the Legality of Local Inclusionary Zoning and Its Potential to Meet Affordable Housing Needs 
Zoning and Planning Law Reports, Vol. 36, No. 4, April 2013
Tim Iglesias 
University of San Francisco - School of Law 
Date posted: 
23 Jul 2014

Accepted Paper Series

13 Incl. Electronic Paper Public Interest Litigation in the Netherlands – A Multidimensional Take on the Promotion of Environmental Interests by Private Parties Through the Courts 
Utrecht Law Review, Vol. 10, No. 3, p. 77-90, June 2014
Berthy van den Broek and Liesbeth F.H. Enneking 
Utrecht University - Centre for Environmental Law and Policy and Utrecht University - Utrecht Centre for Accountability and Liability Law 
Date posted: 
15 Jul 2014

Accepted Paper Series

14 Incl. Electronic Paper Tort Law 
14 Touro L. Rev. 459 (1998), Touro Law Center Legal Studies Research Paper Series 
Leon D. Lazer 
Touro College - Jacob D. Fuchsberg Law Center 
Date posted: 
22 Jul 2014

Accepted Paper Series

15   Thermal Expansion, Melting Glaciers, and Rising Tides: The Public Trust in Mississippi, 
Ronald J. Rychlak 
University of Mississippi, School of Law 
Date posted: 
18 Jul 2014

working papers series


 Property, Land Use & Real Estate Law eJournal Top 10 articles:

1 193 How to Do Things with Hohfeld 
Pierre Schlag 
University of Colorado Law School 
Date posted to database: 13 Jul 2014 
Last Revised: 22 Jul 2014
2 169 O'Reilly v. Morse 
Adam Mossoff 
George Mason University School of Law 
Date posted to database: 12 Jun 2014 
Last Revised: 16 Jul 2014
3 151 Still an Issue: The Taking Issue at 40 
Patricia Salkin 
Touro College - Jacob D. Fuchsberg Law Center 
Date posted to database: 27 Jun 2014 
Last Revised: 6 Jul 2014
4 146 Unconstitutional Perpetual Trusts 
Steven J. Horowitz and Robert H. Sitkoff 
Sidley Austin LLP and Harvard Law School 
Date posted to database: 18 Jun 2014 
Last Revised: 8 Jul 2014
5 127 Properties of Information & the Legal Implications of Same 
Tim Wu 
Columbia University - Law School 
Date posted to database: 6 Jun 2014 
Last Revised: 9 Jul 2014
6 93 The Affirmative Duties of Property Owners 
Robert C. Ellickson 
Yale Law School 
Date posted to database: 11 Jul 2014 
Last Revised: 11 Jul 2014
7 88 The Stripping of the Trust: A Study in Legal Evolution 
Adam S. Hofri-Winogradow 
Hebrew University of Jerusalem - Faculty of Law 
Date posted to database: 26 May 2014 
Last Revised: 26 May 2014
8 87 Property: A Bundle of Sticks or a Tree? 
Anna di Robilant 
Boston University School of Law 
Date posted to database: 20 Jun 2014 
Last Revised: 22 Jul 2014
9 86 The Thing about Exclusion 
Henry E. Smith 
Harvard Law School 
Date posted to database: 14 Jun 2014 
Last Revised: 20 Jun 2014
10 61

Liberalism and the Private Law of Property 
Hanoch Dagan 
Tel Aviv University - Buchmann Faculty of Law 
Date posted to database: 13 Jul 2014 
Last Revised: 13 Jul 2014

 State & Local Government Law eJournal Top 10 articles

1 327 The Failure of Mitigation? 
Robert J. SmithSophie Cull and Zoe Robinson 
University of North Carolina School of Law, Independent and DePaul University College of Law 
Date posted to database: 8 Jun 2014 
Last Revised: 17 Jul 2014
2 216 A State Tax Approach to Regulating Greenhouse Gases Under the Clean Air Act 
Samuel D. EisenbergMichael W. WaraAdele C. MorrisMarta Darby and Joel Minor 
Stanford Law School, Stanford Law School, The Brookings Institution, Stanford University and Stanford Law School 
Date posted to database: 24 May 2014 
Last Revised: 24 May 2014
3 146 Unconstitutional Perpetual Trusts 
Steven J. Horowitz and Robert H. Sitkoff 
Sidley Austin LLP and Harvard Law School 
Date posted to database: 18 Jun 2014 
Last Revised: 8 Jul 2014
4 98 Morals from the Courthouse: A Study of Recent Texas Cases Impacting the Wills, Probate, and Trust Practice 
Gerry W. Beyer 
Texas Tech University School of Law 
Date posted to database: 19 Jun 2014 
Last Revised: 19 Jun 2014
5 55 Maryland v. King: Terry v. Ohio Redux 
Tracey Maclin 
Boston University - School of Law 
Date posted to database: 25 Jun 2014 
Last Revised: 25 Jun 2014
6 51 FAA Preemption after Concepcion 
Christopher R. Drahozal 
University of Kansas School of Law 
Date posted to database: 6 Jun 2014 
Last Revised: 6 Jun 2014
7 48 The Political Safeguards of Horizontal Federalism 
Heather Gerken and Ari Holtzblatt 
Yale University - Law School and WilmerHale 
Date posted to database: 6 Jun 2014 
Last Revised: 7 Jul 2014
8 47 Child, Victim, or Prostitute? Justice Through Immunity for Prostituted Children 
Tessa L. Dysart 
Regent University School of Law 
Date posted to database: 17 Jun 2014 
Last Revised: 17 Jun 2014
9 46 Marriage of Necessity: Same-Sex Marriage and Religious Liberty Protections 
Robin Fretwell Wilson 
University of Illinois College of Law 
Date posted to database: 23 Jun 2014 
Last Revised: 23 Jun 2014
10 45 The 'Other' Missouri Model: Systemic Juvenile Injustice in the Show Me State 
Mae C. Quinn 
Washington University in Saint Louis - School of Law 
Date posted to database: 26 May 2014 
Last Revised: 2 Jun 2014

Stephen R. Miller 

August 1, 2014 | Permalink | Comments (0)

Thursday, July 31, 2014

Welcome August guest bloggers John Travis Marshall & Ryan Max Rowberry

We are delighted to welcome two exciting new voices, Georgia State University College of Law professors John Travis Marshall and Ryan Max Rowberry, to Land Use Prof Blog for the month of August.  Both have tremendous experience in land use law and some great projects I know they will tell us more about over the coming month.  As always, feel free to comment on their blog posts or contact them directly.

About August's guest bloggers:

John Travis Marshall, assistant professor of law, is interested in the challenges associated with John Travis Marshall
the growth and contraction of urban areas. In particular, Marshall studies private, nonprofit and government interventions to promote long-term urban recovery from crises and disasters.

Marshall joined Georgia State Law from Yale Law School, where he was a clinical lecturer in law and the Ludwig Community Development Fellow. From 2007 to 2011, he was a Rockefeller Foundation Fellow with the New Orleans Redevelopment Authority. In that role, Marshall advised NORA on post-Hurricane Katrina implementation of the Authority’s urban revitalization efforts, including land acquisition, development, and disposition programs.

Prior to his work in New Orleans, Marshall was a partner with Holland & Knight LLP, specializing in land use and zoning matters as well as real estate litigation. Following law school, he served as a law clerk to U.S. Magistrate Judge Elizabeth Jenkins, U.S. District Court for the Middle District of Florida.

Marshall earned a B.A. from the University of Notre Dame, an M.A. from the University of Texas at Austin, and a J.D. from the University of Florida College of Law. He teaches Environmental Law and Land Use Law.


Ryan Rowberry is an Assistant Professor and Associate Director for the Center for the Ryan Max RowberryComparative Study of Metropolitan Growth. He teaches Property Law, Natural Resources Law, Environmental Law, and Anglo-American Legal History. Professor Rowberry’s research concentrates on cultural heritage, historic preservation, and natural resources law. He also examines issues related to the medieval Common Law judiciary. Most recently, Professor Rowberry co-authored Historic Preservation Law in a Nutshell with Professor Sara Bronin.  This groundbreaking book provides the first in-depth summary of historic preservation law within its local, state, tribal, federal, and international contexts.

Professor Rowberry graduated from Harvard Law School, where he was an Islamic Legal Studies Fellow, a Cravath International Fellow, and received the Irving Oberman Award in Legal History. Following graduation, he practiced environmental and natural resources law at Hogan Lovells in Washington, DC. Immediately prior to joining the College of Law, Professor Rowberry was a United States Supreme Court Fellow, during which he collaborated with foreign judges and academics on judicial independence and rule-of-law matters.

Before attending law school, Professor Rowberry worked as a historian and an educator. He transcribed and collated all extant medieval manuscripts for three of Chaucer’s Canterbury Tales. He also taught 7th grade at a charter school and lectured in English and History at Peking University in Beijing, China. He holds a B.A. in English from Brigham Young University and was selected as a Rhodes Scholar. At Oxford University he earned a M.Sc. in Comparative Education Policy and a M.St. in Medieval British History.

Welcome John and Ryan!

July 31, 2014 | Permalink | Comments (0)

RLUIPA now has its own ABA treatise

This month the ABA published what I believe to be the first-ever treatise on RLUIPA.  Here is the blurb for Litigating Religious Land Use Cases:

This book discusses how to litigate such a religious land use case on behalf of a religious entity pursuant to the Religious Land Use and Institutionalized Persons Act (“RLUIPA”)  and the First Amendment.  While the First Amendment dates to the founding days of the United States, RLUIPA is a much more recent federal law that can serve as an effective tool in protecting the property interests of religious organizations.

Stephen R. Miller

July 31, 2014 | Permalink | Comments (0)

Wednesday, July 30, 2014

Harvard Food Law and Policy Career Guide published

The Harvard Food Law Society and the Harvard Food Law and Policy Clinic have just published the Harvard Food Law and Policy Career Guide.  There are a number of land use angles in the newly emerging area of food law.  Burgeoning land use lawyers may well find some new career ideas in this guide.

Stephen R. Miller

July 30, 2014 | Permalink | Comments (0)

Are San Francisco's land use rules the culprit for skyrocketing rents? (Hint: No.)

The last few weeks have seen a barrage of criticism regarding San Francisco’s land use rules; among the critiques was a Washington Post op-ed quoting luminaries like Enrico Moretti, descrying the land use rules for restricting housing starts in the city. Having lived in the city for 11 years, and having practiced as a land use lawyer representing most of the major developers in the city for five of those years, I can tell you categorically that the city needs more housing, and also categorically that the critics are crazy if they think the answer to San Francisco’s housing problems is more housing starts. Let me explain.

San Francisco, as a jurisdiction, is 7 miles square, and it was built out years ago. Any effort to change that fundamental infrastructure, which already provides for one of the most densely settled cities in the country, would be foolish. San Francisco can contribute to the regional housing stock growth needed, but it will not be able to meet the region’s needs or even provide the lion’s share of new housing stock. The suburbs will have to do that.  A cursory look at the region's fair share housing allocation makes this clear. 

Moreoever, San Francisco is one of the great cities of the world. You do not want to ruin that. For a brief history lesson, google “Justin Herman” and “Western Addition II.”  See City For Sale for a history of the city’s racist and classist redevelopment practices of the Sixties and Seventies, and the ugly scourge the city's first wave of high-rise housing left on the central parts of the city.  It's not all about dwelling units; how it's done matters, too.  See the 5 D's and the one P of city design (it seems there is a new "D" every year now; maybe there are six or seven D's by now).

Dont' get me wrong:  I am not against highrises in the city where appropriate. They make perfect sense along the BART transit corridor. Build high in the sky around all the BART stops. By the way, most of the western part of the city is sandy soil subject to liquefaction in earthquakes; you will never build high there.  Same with the Marina.  That leaves SOMA, much of which is presently already entitled for new residential units.  (See Rincon Hill with multiple entitlements for high-rise residential not yet built.)  So...where are all these housing starts in San Francisco going to come from?

The skyrocketing rental rates are contained, primarily, to several neighborhoods that are hyper-fashionable. If San Francisco really wanted to assist the rental market, it would facilitate making some of its down-and-out neighborhoods along its southern border more accessible to the Google throngs, and it would make those neighborhoods more accessible to downtown. The market price of real estate in San Francisco is governed by two things: how fast can you get to Silicon Valley and how fast can you get downtown. The southern neighborhoods of the city all have fast access to 280. Most are under-built given their access to 280 and also their closeness to BART.  Oh, these neighborhoods also happen to be the most diverse in the city, too. Is it a problem to lose that diversity? Something to consider for the housing starts boosters.

One certain problem in the city’s rental market is rent control. Let me illustrate by using myself as an example. For nine years, I lived in the first-floor of a three story rent-stabilized apartment that was absurdly cheap by the time I left for the outer, outer East Bay suburb of Idaho.  (That’s a joke.) I went to an Ivy League. The guy on the second floor, who, when I left, had lived in a rent-stabilized apartment for 15 years, had gone to Harvard. The guy on the third floor, who, when I left, had lived in a rent-stabilized apartment for 23 years, had gone to Princeton. All of us had very good jobs, and all of us had ridiculously below-market rents. No doubt, I loved the cheap rent, but the idea that rent control is helping the poor in the city is problematic. It helps the rich just as much, maybe more. In addition, landlords also incorporate the loss from rent control over the average stay—3 or 4 years—into the up-front price of the rent.  What's a better option?  Transferable housing vouchers for the poor (e.g., Section 8, which the Republicans are slowly strangling nationally, but maybe the city could create something similar locally for those, say, below x% of area median income).

Which leads to my final point, which is the same as my first: San Francisco is a tiny part of the Bay Area. The city is just 1 million people in an area of over 7 million people. The biggest problem, though, is that outside of San Francisco, and a very few other locations, the rest of the Bay Area housing stock is bleh. I mean really bleh, as in more bleh than the strip-mall Ohio town where I grew up. Most Bay Area suburbs are really, really boring.  (Sorry, Antioch.)

That is why there has been a concerted effort to build a plan to create nice neighborhood development throughout the region that would emulate the kinds of urban experiences available in San Francisco. Required by SB375, that plan was called One Bay Area, and it was sued by the Sierra Club, another environmental justice group, developers, and an “anti-sustainability” group. If you want to solve the problem of San Francisco rents, you will never be able to solve it by tearing down San Francisco and building it back up again as high rises. Instead, you will need to build more San Francisco-style development in the adjacent suburban communities. The problem is, absolutely everyone—environmentalists, property rights advocates, real estate developers—hate that idea but for different reasons. That, my friends, is why San Francisco, an iconic city in the midst of boring suburbs, is stuck with the problem it has.

Now, I am not against a good rail against the San Francisco land use regime. If you want to really put it to task, let me give you some examples of the rust gunking up the system that could use assistance that has nothing to do with housing starts:

1. Building permit issuance in most cities is considered ministerial. In San Francisco, building permit issuance is considered discretionary. The end result is that projects are subject to far more review, and can be more easily stopped, in San Francisco, than in any other major city in the country.

2. The city has adopted environmental review procedures under the California Environmental Quality Act that are byzantine and defy the purpose of the act. Particularly arbitrary are the city’s rules governing categorical exemptions, which are supposed to make small projects easy to permit but, in San Francisco, require a written evaluation and can even require reports. Nowhere else in California does this. This is time-consuming, tedious, and yields almost no substantial benefit in the quality of life of the city. Large developers consider it a cost of doing business; the onus of the regulation falls on small property owners who want to do simple things like build a room on the back of their homes or add on a deck.

3. The Planning Code is gunked up with several provisions that were intended to stymie development in the Seventies and make no sense. The most obvious is the “eliminate no sunshine on parks” rule. Any sensible investigation of how this is implemented would be troublesome.

4. District elections have encouraged territorial thinking on the Board of Supervisors. The city needs a new way; a mixed system of some district elections and some city-wide elections could be a way forward.

I come back to one thing when I hear people lament the prices of San Francisco: people love San Francisco like nowhere else in America. People don’t love Phoenix or Houston, for all the housing starts they offer. San Francisco is also undergoing a colossal change. Although San Francisco has long been a well-off city, it has not had the kind of wealth of Los Angeles or New York since the Gold Rush days. San Francisco now has that wealth in spades. That wealth is what is changing the city.  But if you can get away from the madding crowd of the Google bus queue, there are still excellent Singapore-style dumplings to be found in the Richmond and, for those whose ego can take the hit, some great places to live just over the border in South San Francisco or, dare I even mention it, Sunnyvale.  

Stephen R. Miller


July 30, 2014 | Permalink | Comments (2)

Tuesday, July 29, 2014

New White House report puts a financial face on climate change dithering

Today the White House released its report entitled The Cost of Delaying Action to Stem Climate Change.  Here are the two takeaway paragraphs:


Based on a leading aggregate damage estimate in the climate economics literature, a delay that results in warming of 3° Celsius above preindustrial levels, instead of 2°, could increase economic damages by approximately 0.9 percent of global output. To put this percentage in perspective, 0.9 percent of estimated 2014 U.S. Gross Domestic Product (GDP) is approximately $150 billion. The incremental cost of an additional degree of warming beyond 3° Celsius would be even greater. Moreover, these costs are not one-time, but are rather incurred year after year because of the permanent damage caused by increased climate change resulting from the delay.

An analysis of research on the cost of dela for hitting a specified climate target (typically, a given concentration of greenhouse gases) suggests that net mitigation costs increase, on average, by approximately 40 percent for each decade of delay. These costs are higher for more aggressive climate goals: each year of delay means more CO2 emissions, so it becomes increasingly difficult, or even infeasible, to hit a climate target that is likely to yield only moderate temperature increases.

Stephen R. Miller

July 29, 2014 | Permalink | Comments (0)

Monday, July 28, 2014

Tenure-Track Property Law Position at University of Montana School of Law

The good folks in Missoula shared their position advertisement with me so I can it share with you all.

Jim K.

Best place to live and teach in the U.S.:  The University of Montana School of Law anticipates hiring a full-time, tenure-track professor beginning in the 2015-2016 academic year to teach in the area of property and related courses.  We are committed to integrating theory with practice, making substantial practice experience in the areas to be taught particularly valuable.

Tenure Track Faculty/Property Law Position

Title: Assistant Professor
Position Type: Academic
Closing Date: Screening begins 9/12/2014; applications accepted until further notice or the position is filled
Full time academic year position (10 month contract) beginning fall semester 2015
Entry Rate: $72,000-$76,000
Benefits: Medical Insurance/Mandatory Retirement/Professional Development/Partial Tuition Waiver/Wellness

Primary Duties: Primary duties include teaching, scholarship and service, as set forth in the University of Montana School of Law Faculty Handbook. UM Law faculty may also be asked to assist with clinical course supervision.

Specific duties include: Teaching a required Property Law course to ~83 students, along with related elective courses such as intellectual property; advising students with questions about the practice and study of property law; interacting with state, tribal, and federal constituencies; producing scholarship and other written creative achievement; and engaging in professional service, including participation on law school and university committees.



  • Juris Doctorate degree from an ABA accredited law school
  • a superior academic background
  • substantial relevant practical experience in property law
  • potential for effective teaching
  • potential for scholarship
  • the ability to work collegially with students, staff, faculty, and external constituencies of the law school
  • creativity, resourcefulness, fairness, compassion, and initiative

Application review will begin September 12, 2014, and continue until the position is filled.


Apply online only at

IMPORTANT: Please do not send applications directly to the University of Montana School of Law.  Applications sent directly to the School of Law will not be considered or forwarded to Human Resource Services.  Only applications submitted through the UM online applicant system will be considered. No exceptions.  For a full position description, list of materials & instructions to apply, visit   


ADA/EOE/AA/Veteran's Preference Employer



July 28, 2014 in Property | Permalink | Comments (0)

Cincinnati weighs an "icon tax" to save beleagured historic buildings

Two magisterial structures in Cincinnati--the ornate Music Hall and Union Terminal--are the subject of a proposed sales tax to raise money needed to preserve the buildings.  The Cincinnati Enquirer ran a series of op-eds today on the issue, which provide a nice collection of opinions on the merits of using arts, historic preservation, and sports as an economic development catalyst. 

Stephen R. Miller

July 28, 2014 | Permalink | Comments (0)

Friday, July 25, 2014

Colorado district court holds local government's fracking ban is preempted by state oil and gas law

Yesterday, a Colorado district (trial) court found that the city of Longmont's ban on hydraulic fracturing and the storage and disposal of hydraulic fracturing waste in the city was invalid.  The court held that the local government's ordinance was preempted by the Colorado Oil and Gas Conservation Act.  (Order here.)  The order will surely be appealed.

Stephen R. Miller


July 25, 2014 | Permalink | Comments (0)

New voices coming to Land Use Prof Blog this fall!

The editors of Land Use Prof Blog are delighted to announce that we have lined up a great group of scholars to guest blog for us this fall.  Jessie, Matt, Jim and I will continue to blog away, as usual, but there will also be a good deal of new voices and new ideas on the blog in the coming months.  New bloggers will be announced at the beginning of each month.

We are excited by these additions, and hope you will enjoy and engage with our guests over the coming months.  Our first guest bloggers of the fall will begin August 1 and, if we fulfill our larger goal, we will have 5-10 guest bloggers throuhgout the fall.

As always, we welcome comments on the blog and, in particular, ideas for making the blog a better service to the academy and the larger land use law community.

Stephen R. Miller 

July 25, 2014 | Permalink | Comments (0)

Thursday, July 24, 2014

Levity, in solidarity with bar takers everywhere...


The bar exam is just under a week away in most jurisdictions.  I saw one of my former students this morning, who shared this video with me.  Worth a chuckle... 



[Note:  the original is from the movie Downfall.  See the original version here.]

Stephen R. Miller

July 24, 2014 | Permalink | Comments (0)

Wednesday, July 23, 2014

2015 AALS Panel Call For Papers: The Law of Resilient Cities: State and Local Adaptation to Climate Change

I'm guessing blog readers are probably tired of my posts over the past year about Idaho's Resilient Cities symposium; rest assured, this post has nothing to do with the event I advised last year in Idaho!  

This is an entirely new resilient cities CFP for an event to be held at the 2015 AALS conference.  From Alice Kaswan:

            Michelle Wilde Anderson (Chair of the AALS State and Local Government Section) and Alice Kaswan (Chair of the Environmental Law Section) are seeking proposals for speakers on our sections’ joint panel on “The Law of Resilient Cities: State and Local Adaptation to Climate Change” at the January 2015 AALS meeting in Washington, D.C.  The panel session is scheduled for Saturday morning, January 3, 2015, at 10:30.

            We have anchored the panel with two confirmed speakers: Vicki Arroyo of the Georgetown Law Center and Tony Arnold of the University of Louisville.  We are soliciting proposals for the last two speaking slots.  We know that many section members have tremendous insight and expertise in this area and look forward to hearing your ideas.

            If you are interested in participating as a panelist, please submit a proposal (under 250 words) via email to and by September 1, 2015

Here is a more detailed description of the panel:

The Law of Resilient Cities: State and Local Adaptation to Climate Change: As wild storms, flooding rivers, rising seas, droughts, heat, and fire jeopardize our communities, how should the legal academy respond?  Last year, at the 2014 AALS meeting, speakers from the environmental law section field trip spoke from the trenches about the challenges facing New York and New York City’s monumental effort to plan and build a more resilient city that can withstand the changes to be wrought by climate change.  This year, we bring together scholars and clinicians of state and local government law and of environmental law to take the next step: to share perspectives on how governmental institutions at every level can evolve to create effective and equitable responses to the profound challenges posed by climate change adaptation.  

Stephen R. Miller

July 23, 2014 | Permalink | Comments (0)

Frick on the Tea Party and planning

Karen Trapenberg Frick (Berkeley - Planning) has a really interesting article I just came across in the Summer, 2013 edition of the Journal of the American Planning Association entitled The Actions of Discontent:  Tea Party and Property Rights Activists Pushing Back Against Regional Planning.  Here is the abstract:

The Tea Party’s effects on local and regional planning efforts, given the movement’s fierce support of property rights and equally fierce opposition to sustainability goals in regional planning efforts, have received little study. I wanted to understand how Tea Party and fellow property rights advocates became involved in regional planning efforts in the San Francisco Bay Area and Atlanta, GA, and how planners perceived and dealt with their objections and tactics. Interactions between the two groups were marked by philosophical differences over the role of government and the necessity and value of regional planning. However, these actors were also deeply divided on plan content and the authenticity of the public outreach process. Tea Party and property rights activists were not the only ones with substantive and procedural concerns about regional planning efforts; tactical coalitions of unexpected allies emerged, aligning on plan viability, finance methods and funding, project costs, impacts, and process. My research shows that common ground can be negotiated between opposing groups on matters of content and process. The concerns of the various stakeholders involved parallel questions often addressed by scholarly planning research, providing evidence of continuing challenges and fl aws in planning. 

Takeaway for practice: The planning community should not dismiss the opposition of Tea Party and property rights advocates; these activists could catalyze new coalitions of opponents if planners do not attend to the substantive and procedural concerns of participants.

Cite:  Karen Trapenberg Frick (2013) The Actions of Discontent: Tea Party and Property Rights Activists Pushing Back Against Regional Planning, Journal of the American Planning Association, 79:3, 190-200, DOI:  10.1080/01944363.2013.885312.

(Note:  The full text of this article is currently available online without fee for those without a subscription.)

Stephen R. Miller

July 23, 2014 | Permalink | Comments (0)

Tuesday, July 22, 2014

The rise of community owned stores in the rural Great Plains and Mountain West

In addition to this blog, I also write an occasional column for the Idaho Statesman.  I recently wrote about some work of my Economic Development Clinic for a state agency that I thought I'd share in this forum.  Here is the op-ed, also reproduced below:

Idaho's rural cities are used to having their backs against the wall. Many have already witnessed the civic death-spiral of shrinking populations and shrinking opportunities that send people packing. There is often a tipping point in a rural community, when the townspeople either rally and push on together, or pack up and head for the cities. That tipping point could be when a school closes, a big employer closes, or in many towns, when the daily needs of life can be purchased without an hour's trip to the nearest big-box store.

Over the last decade, a small but growing number of communities across the Great Plains and Mountain West no longer served by a market are taking matters into their own hand. When the chain store or general store leaves, residents are banding together and starting community-owned stores.

Last year, my Economic Development Clinic assisted several rural Idaho communities in researching some of most successful of these community entrepreneurs. The stories we heard from across the country told of years of hard work setting up such stores. But we also heard that the hard work brought these communities together in a way that might save them in the end.

What is a community-owned store? Simply put, it is a for-profit corporation where the shareholders are all members of the local community.

By most accounts, the first community-owned store was Little Muddy Dry Goods, of Plentywood, Mont. The star of the community-owned store movement, though, is the Powell Merc in Powell, Wyo.

When a national chain store closed right at the heart of the 5,000-person town's commercial strip just over a decade ago, the community wondered what the future would bring. Not content to see the town die, a group of volunteers banded together, met once a week for nearly a year, created a business plan in that time, and began selling 1,000 shares of the store at $500 a share to community members. About two years later, in 2002, the Powell Merc opened its doors. It has stayed open since. It filled a major hole in the city's commercial strip, provided a place to shop for daily needs, and proved a source of local pride.

Of course, the store's shareholders have not seen as lucrative a return on their investment as the stock of some high-flying tech company might have provided. Shareholders were told upfront not to expect dividends and that their investment was in the community. In those terms, shareholders of the Powell Merc seem to have gotten something better than a share of Apple could have provided: the town's survival and the maintenance of a rural way of life.

Starting a community-owned store is tough. The Community Store in rural Saranac Lake, N.Y., took five years to go from business plan to grand opening. The manager there told us "you need a group with tenacity" to make a store work. But a growing number of communities - places such as Ely, Nev., and Quimper, Wash., and other small towns across Wyoming - are giving it a try.

It might just work here, too. For the small Idaho town on the tipping point of survival, a community- owned store could be just the thing to keep the town livable, and keep the community together.

Stephen R. Miller 

July 22, 2014 | Permalink | Comments (2)

Monday, July 21, 2014

Regulating the sharing economy by hook or by crook (or by opinion)

Thomas Friedman had an op-ed in Sunday's NYT about the sharing economy.  Relevant to this blog was one of the closing paragraphs in the op-ed, which read:

How fast [the growth of the sharing economy] happens will depend, in part, on regulators and tax collectors in different cities — not all of whom like people turning their spare bedrooms into hotels or their kitchens into pop-up restaurants. The sharing economy can complement the existing one, and make the pie bigger. But the bigger the Ubers and Airbnbs get, the more incumbents will resist them. This will be a struggle between the 20th-century economy and the 21st’s.

Friedman is right; the future of the sharing economy is, in many ways, governed by how local governments respond to the changes.  It is not, however, entirely a division between the 20th and 21st centuries; rather, the kinds of issues cities are forced to balance in regulating the sharing economy go back to very pragmatic--some might even say 19th century--public health and safety concerns.  

For instance, in some fashionable neighborhoods, so many people are subletting on Airbnb that critics argue rents now incorporate the potential for illegal subletting into the cost of the rent.  Even if such critics are not accurate, the hyper-renting on Airbnb and similar platforms does have substantial effects on particular apartment buildings and on the character of certain neighborhoods.  

Similarly, taxi drivers have not only been subject to regulations to protect their industry; rather, regulations on taxis ensure safety and much more.  For instance, taxis often must maintain environmental standards for their vehicles that are specific for fleet vehicles.  Sharing economy upstarts, like Uber and Lyft, are not subject to those fleet standards.  

And so, I would argue it is not accurate to say that the regulatory hurdle the sharing economy faces is the 20th century against the 21st.  Instead, I would say that the issue the sharing economy faces is how to provide 21st century flexibility within the parameters of public health and safety we came to expect in our urban spaces in the late 19th century.  

This change will come, but it will come in fits and starts, and primarily through experimentation in governmental regulation.  Interestingly, that regulation may come to rely, as Friedman writes elsewhere in the piece, on the perception of "trust" that a sharing economy vendor maintains through rankings and ratings.  If it were to come to that, such a change would alter the very idea of regulation and radically decentralize it.  Would it be regulation any more?  Where would liability flow in a regulatory state of private opinion?  These are big questions, ones I am just beginning to grapple with in a new article, and ones where I think the local government and land use legal academy could offer real assistance to local governments in the coming years.

Stephen R. Miller

July 21, 2014 | Permalink | Comments (2)

Friday, July 18, 2014

USGS Climate Change Hazards Portal released

The USGS has just released its Climate Change Hazards Portal, which allows users to visualize the effects of extreme storms, shoreline change, and sea-level rise on the U.S. coastline.  Worth checking out.  

July 18, 2014 | Permalink | Comments (0)

Thursday, July 17, 2014

Federal government to assist cities with climate change resilience

From Governing:

The federal government will expand its efforts to help states and local governments prepare for natural disasters and climate change, under a series of actions announced by the White House July 16.

The measures include awarding utilities in eight states a total of $236 million to improve rural electrical grids; providing drought assistance to parched communities in the West; and expanding disaster relief to include projects that would help minimize damage from future events.

President Barack Obama announced the actions as he met for the fourth and final time with a 26-member task force of state, tribal and local officials studying resilience.

Full article here.  Hat tip to Jonathan Rosenbloom who assisted the task force.

Stephen R. Miller

July 17, 2014 | Permalink | Comments (0)

Wednesday, July 16, 2014

ANNOUNCING STUDY SPACE VIII—Warsaw, Poland (June 15-19, 2015)

Study Space VIII Theme:  Phoenix Cities: Urban Recovery and Resilience in the Wake of Conflict, Crisis, and Disaster

The Center for the Comparative Study for Metropolitan Growth at the Georgia State University College of Law is again offering a unique opportunity for travel and learning in June 2015.  The eighth iteration of Study Space—a weeklong intensive workshop in which scholars, government and private sector professionals develop solutions to legal, social and policy challenges in urban areas—will take place in Warsaw, Poland at the University of Warsaw’s Foundation Centre of Disputes and Conflicts Resolution at the Faculty of Law.

Study Space Poland will feature the incredible reconstruction of Warsaw, Poland in the post-war era. The program will provide historical and political context to the reconstruction of the city, and use the past as a guide to understanding today’s planning goals from a socio-economic perspective. 

Study Space Poland will feature a number of lectures and site visits. For example, participants will visit the Old Town and learn about how paintings by Canaletto aided in the reconstruction of the city to its near original form.  Tours outside the Old City will demonstrate to participants how areas were redesigned during reconstruction to accommodate the growing city’s needs.  Whereas lectures about housing issues and squatters and reprivitization will demonstrate the challenges of reconstruction.  

Participants are sure to leave the experience with a new perspective on creating resilient cities informed by the past and present while looking towards the future.

This program is open to professionals and scholars around the world.  Space is limited so early application is encouraged.

Please feel free to share this announcement with your colleagues or others who may be interested.

Want more info?  Contact Karen Johnston at or 404-413-9175.

July 16, 2014 | Permalink | Comments (0)